Lawless. David E. Bernstein

Resources Division encourages environmental groups to sue the government for purportedly lax interpretations of existing law. The parties then enter a settlement agreement that requires the government to regulate far more stringently than statutes and the formal regulation-writing process would allow. This allows the executive branch to engage in lawmaking without the approval or oversight of Congress or the public.⁴⁰

      Finally, there is the matter of the Justice Department’s refusal to defend the Defense of Marriage Act (DOMA) from constitutional challenge.⁴¹ For decades, attorneys general of the United States have taken the position that, regardless of their administration’s own view of a law, “they will not call into question the constitutionality of any federal statute unless the law is so patently unconstitutional that no defense could be mounted in good conscience.”⁴² The Obama administration officially agrees with that long-standing principle.

      In 2011, however, the Obama administration ignored that rule for political reasons. Challenges to DOMA, which defined marriage for federal purposes as consisting of a man and a woman to the exclusion of same-sex couplings, regardless of state law to the contrary, were working their way through the courts. With a tight 2012 reelection battle pending, and gay rights groups clamoring for the administration, which had still not announced its support for same-sex marriage, to show some goodwill, the administration refused to defend DOMA in court.

      Attorney General Holder argued that the Justice Department could not in good conscience defend DOMA because there were no legitimate arguments to be made for its constitutionality. That was a rather implausible claim, given that the DOJ had defended DOMA in court just a year earlier. And recall that Holder’s Justice Department had also taken the position that allowing D.C.’s representative in Congress to vote, in blatant violation of an explicit constitutional provision, was nevertheless “defensible.”

      The House of Representatives hired its own lawyers to defend DOMA, but the Supreme Court held it unconstitutional in a 5–4 decision. The fact that four of the nine justices thought DOMA to be constitutional shows that DOMA was not, in fact, so patently unconstitutional that one could not defend it in good conscience. As legal scholar Ed Whelan notes, both the Supreme Court majority and dissent criticized Holder for refusing to defend the law. Justice Anthony Kennedy, for the majority, complained that Holder’s “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma” and warned that such behavior “poses grave challenges to the separation of powers.” In his dissent, Justice Antonin Scalia more bluntly opined, “There is no justification for the Justice Department’s abandoning the law in the present case.”⁴³ But there was, of course, a justification, just not a very good one; as has so often been true in the Obama administration, the president and his attorney general were more interested in playing politics and pursuing a progressive ideological agenda than in upholding the rule of law.

       Chapter 3

       A LEAVE OF ABSENCE FROM THE “REPUBLIC OF CONSCIENCE”

      THE OBAMA ADMINISTRATION has been a huge disappointment to those who hoped President Obama would reverse the trend of presidents usurping more and more authority over foreign and military affairs. The Constitution provides only a broad, vague outline of presidential authority in these areas. The president gets to negotiate treaties (which then must be approved by two-thirds of the Senate) and is the commander-in-chief of the armed forces. Congress, meanwhile, has the exclusive power to declare war and to pass legislation regulating international trade.

      The Constitution does not directly address any number of situations. For example, it does not say under what, if any, circumstances the president may, without Congress’s consent, send armed forces into harm’s way in a situation that does not amount to a formal state of war with another country.¹ Most scholars of the original meaning of the Constitution believe that the president was supposed to have only very limited authority to use armed force abroad without congressional consent. But for the last one hundred years or so, presidents have been sending soldiers to battle on their own say-so with very little pushback from Congress and the courts. Meanwhile, the Supreme Court has often suggested that the scope of a current president’s power is defined in part by what his predecessors did.

      Just about everyone acknowledges that the ultimate constitutional check on presidential authority was supposed to be Congress’s authority to refuse to appropriate funds for the president’s initiatives, the so-called power of the purse. The power of the purse worked reasonably well in America’s early days, when the federal government was limited in scope and the president had to beg Congress for money before he could engage in major military action abroad.

      Today, however, the power of the purse is no longer an effective constraint on the president, because the president has many ways to evade Congress’s control over military appropriations.² Presidents have learned to use accounting tricks and loopholes to move funds Congress approved for one purpose over to a purpose Congress has not approved at all. Because of such manipulations, Congress never got the opportunity to decide whether to use its power of the purse to stifle US intervention in Libya in 2011. The Obama administration paid for that conflict entirely out of funds reallocated from other Defense Department accounts.³

      The authors of the Constitution expected that Congress as a whole would be motivated to preserve its authority against presidential encroachment. The Founding Fathers, however, did not anticipate the development of our two-party system. At any given time around half the members of Congress belong to the same party as the president, and do not want to limit “their” president’s authority.⁴ Congress is therefore not likely to make a serious effort to close loopholes and forbid accounting tricks anytime soon.

      Even if Congress did make more of an effort to use its power of the purse, it would not necessarily constrain the president. In 2014, Congress passed a law banning the president from using any Defense Department funds to release prisoners from Guantanamo Bay, Cuba, without giving Congress thirty days’ notice. President Obama nevertheless traded five high-ranking Al Qaeda prisoners for captured US soldier Bowe Bergdahl without the required notice. This action blatantly violated both the 2014 law and the Antideficiency Act. The latter law forbids federal agencies to spend funds “in excess or in advance of amounts that are legally available.” The nonpartisan Government Accountability Office concluded that the Obama administration violated a “clear and unambiguous law.”⁵ The administration floundered for a rationale for breaking the law, and never gave an entirely coherent explanation.